Oregon Strategies for Transportation Compliance with the Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA), a federal law enforced by the U.S. Fish and Wildlife Service (USFWS), has no provision for incidental (i.e., unintentional) take of migratory birds during transportation projects. Because more than 400 species of migratory birds live in Oregon and more than 300 of them nest in highway right-of-ways and on bridges, Oregon Department of Transportation (ODOT) is at risk of non-compliance with the MBTA as the agency carries out its mission ‘to provide a safe, efficient transportation system.’ Although the MBTA is one of the oldest laws in the nation to protect species and natural resources (enacted in 1918), state DOTs have not been provided with guidance at the federal level on how to resolve transportation conflicts with migratory birds when they arise. In the absence of take permits for unintentional harm to migratory birds, ODOT has implemented a multi-faceted migratory bird strategy that not only increases migratory bird protection during transportation projects, but also minimizes the risk of prosecution should an ODOT MBTA violation inadvertently occur.Initially, ODOT developed a MBTA Highway Division Directive. The purpose of the Directive is to provide agency personnel involved in project delivery, construction, and maintenance with guidelines and strategies to ensure that appropriate and reasonable measures are taken to prevent injury to and death of migratory birds. The Directive emphasizes that all employees must practice due diligence to safeguard migratory birds while they carry out ODOT’s transportation mission. Subsequently, ODOT signed inter-governmental agreements with USDA-APHIS-Wildlife Services (U.S. Department of Agriculture – Animal Plant Health Inspection Service). Wildlife Services is authorized by Congress to conduct animal control activities. When ODOT contracts with Wildlife Services for migratory bird management on projects, incidental take is covered under Wildlife Services’ take permits. Currently, ODOT is developing an Avian Protection Plan (APP), a voluntary agency-specific program of best management practices designed to protect and conserve migratory birds that is endorsed by USFWS. USFWS Enforcement has MBTA prosecutorial discretion, and an agency operating under an APP is allowed to fulfill its mission without the need for formal USFWS concurrence on every action that has potential to impact migratory birds. ODOT will implement its APP following development of an agency-wide bird mortality tracking system